Arrest & Remand Illegal If Accused Not Informed Grounds Of Arrest; Filing Of Chargesheet Won't Validate Illegal Arrest : Supreme Court

“Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused.,” held Justices B.R Gavai and Sandeep Mehta 

The above observation has emanated from the Court's judgment declaring NewsClick founder and Editor-in-Chief Prabir Purkayastha's arrest and his remand in a case under the Unlawful Activities (Prevention) Act 1967 as illegal. The Court rested its reasoning on the fact that the grounds of the arrest were not supplied to him in writing.

Elaborating, the Court observed that the right to be informed about the grounds of arrest flows from Article 22(1) of the Indian Constitution. Thus, any breach of this fundamental right would vitiate the arrest as well as the remand. Further, the same cannot be validated even if the chargesheet has been filed.

Against this backdrop, the Court delved into the issue of whether informing of the grounds of arrest in writing is mandatory even when Article 22(1) does not state explicitly of such requirement. As per this Article, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.

One of the contentions raised before the court by Delhi Police was that even in a case of preventive detention under Article 22(5), grounds of arrest are not required to be given in writing. Not satisfied with this argument, the Court cited a few cases, including the Constitution Bench's judgment in Harikisan v. State of Maharashtra and Others., 962 SCC OnLine SC 117. Therein, the Top Court held that communication of the grounds of detention to the detenue in writing and in a language that he understood was imperative. It further stated that the detention order was vitiated as the guarantee under Article 22(5) of the Constitution was violated. To quote from the judgment:

“In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.”

“Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based.”

Taking a cue from this reasoning, the Court, in the instant matter, held that the grounds of arrest must be communicated in writing. This is to enable the accused to take action against the deprivation of his liberty.

Moreover, the Court also observed that this above interpretation would also extend to Article 22(1) as the language used in both these Articles (Article 22(1) and Article 22(5)) regarding the communication of the grounds is identical.

“Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation.,” the Court said.

It may be recalled that Purkayastha has been in custody since October 3 last year under the UAPA in a case over receiving Chinese funds to propagate anti-national propaganda.

Purkayastha approached the Court challenging the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court's judgment in Pankaj Bansal v Union of India

In this respect, the Court also held that the ratio laid down in the judgment in the case Pankaj Bansal mandating that grounds of arrest must be supplied to the accused in writing will also apply in the cases registered under the UAPA.

The arrest and remand having been declared invalid in the eyes of the law and set aside, the Court ordered the release of Purkayasatha. However, it said that the release would be subject to his furnishing the bail and bonds to the satisfaction of the trial Court since the chargesheet has been filed.

Case Details: Prabir Purkayastha v. State., Diary No, 42896 of 2023

Click here to read/ download the judgment